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tv   [untitled]    April 25, 2012 1:00am-1:30am PDT

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of calling. chair hur: that is not really expert testimony. that is -- what would that be intended to prove? >> to demonstrate that whatever the mayor's charges are, even if any of them are true, and i think we're probably arrive at a situation on one or two less contested issues -- for example, a guilty plea entered for in mr. leader, we would probably be able to stipulate to that fact, but i do not think it would be unnecessarily -- it could be characterized as expert testimony, but it could be testimony from a law enforcement officers personal experience that that fact in and of itself does not rise to a level of official misconduct and is not related to their duties as a
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law-enforcement officer. chair hur: ok. other than the legal issue of whether or not the commission needs to vote unanimously in order for it to make a recommendation to the board, are there other legal issues in addition to the ones identified by the commission staff that you think should be briefed? >> aside from the one issue i mentioned a couple of times now that we need clarification on whether or not the city attorney investigation is duly authorized by law, i cannot think of any other legal issues that we need to raise. strike that. there is one question i would like answered. we would like, as part of our briefing, to make an argument that the charges, even if
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everything is believed in the charges and do a symmetry of everything that is in the mayor's charges that it still does not make a case for official misconduct, said this would be on the nature of a demure. we'd like to know if we have the ability to bring such a motion. because we are just making it up as we go along. chair hur: assume for the sake of argument that we have a procedure whereby the mayor has the legal issues, and you have one week or so to respond, would you at that time be prepared with that brief to submit the argument for the motion to dismiss or demure? >> yes. i think one week is sufficient time.
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chair hur: and as far as timing of testimony, it sounds like it depends on when you get certain information from the mayor, but when would -- if live testimony were to be heard, when do you think you would be prepared to present and cross-examine witnesses? >> well, there are two potential witnesses that have some conflicts with dates, but i would think certainly within 60 days. which sounds to me if it is going to take close to that long to get to that point, probably. i would like to be prepared within 30 days.
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chair hur: other questions for him from the commissioners? commissioner: you said you repaired right now to go through your list? i think it would be helpful, if you are prepared to do that. >> sure. i am happy to do that. so i am addressing page two. on the legal questions, we believe that the applicable standard of proof should be beyond the reasonable doubt. that is before any commissioner can vote to make a recommendation to the board of supervisors that they should sustain any of these charges, each commissioner should have to be persuaded beyond a reasonable doubt. the reason for that, and, again, i am terribly sorry you did not receive our memo, but there is a state scheme in place for removal of officers for official misconduct, and it tracks all of the criminal procedure protections, so i think that
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standard of proof should be imported into these proceedings, said that is the reason for that standard. commissioner: i am sorry. you are saying that the scheme for removal of officers is beyond a reasonable doubt? >> yes, that is true, and that is 3060 to 3075, and there are cases that discuss those, which we would be happy to provide to the commission. essentially, the da would bring the charges. you would go to a grand jury and get an indictment, and then it would proceed as if on the criminal indictment. i do not want to move on if there are any other questions on that. hearing none, on the second bullet point, on what type of evidence may be commission relied, i think there is probably going to be a some proposed hearsay testimony that we would likely object to, but
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without getting in to whether the evidence code should be relaxed or not, we are not necessarily opposed to declarations. there may be declarations we are not going to have a problem with. but i think that there is going to be the need for some live testimony. the answer to the third question is no. in our view, the law is clear that any conduct in engaged in by sheriff mirkarimi prior to the time that he assumed the office of sheriff cannot be the basis for a finding of official misconduct. that has been the law in this state since the other decision came down. in fact, the city attorney's office them selves have stated that that is the law. in memos they have submitted to
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the commission previously, that it has to conduct that occurs while in office. i realize they have decided to take a different view of that given the facts of this case, but we believe that that answer has already been answered at the appellate court in this state. commissioner renne: the judge rejected that argument, did he not? he said you could come back. >> i want to be fair. i think he characterized the focus of the opinion as dealing with another issue, but i think that the basis of his decision in rejecting our petition for the mandate was because he felt that be administrative procedure had to be laid out first. so -- number four, official misconduct under the charter require that the official misconduct relate to the shares duties, i think that is unequivocally yes, and if so, does -- does the
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shareable alleged -- alleged this, and our answer is quite clearly know. and whether or not, the question of whether or not the guilty plea itself for the misdemeanor charge of false imprisonment, is that sufficient to sustain a finding of official misconduct, the question, no. the effect of whatever record, tethered in time to the date that this action occurred, which was january 1, or january 4. although as i mentioned, i think these allegations of persuasion will be found to be groundless, so the mere fact that a guilty plea was entered at some point and time after he assumed the office of sheriff we think has no significance for the commission. chair hur: obviously, to brief
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that, we would want the factual and legal basis behind that. any other questions? commissioner renne: i have questions. first, i want to understand about the city attorney's internal investigation on behalf of the mayor. putting aside the question of whether the sheriff has any obligation to cooperate in it, putting that question aside, is it your position that having filed the charges and preparing for a hearing before the ethics commission that the city attorney does not have a right to do an internal investigation? >> not at all, sir. we think that if the commission promulgates rules and procedures that are fair to both sides, we would be happy to have them investigate to the cows come home, because, quite honestly,
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there is nothing to fear here. we just want to make sure that a lot is followed, and the authority that we have been given, they are doing this on behalf of the mayor, they say that they are authorized, the city attorney is authorized to investigate under provisions of the san francisco campaign and governmental conduct code. commissioner renne: other than seeking to interview the sheriff, are there other things that you allege they are doing that sort of violate fair play? >> whatever i tell you is going to be on information and belief. i have been hearing about serving subpoenas and try to compel witnesses to cooperate with them. whoever they are harassing, that person can come into court and raise their own objection. we just feel like we have got one hand tied behind our back. if you decide this is what is on
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to be permissible, to get a compulsory process, you get some limited discovery, and can request documents from the other side. you either debt or do not get a chance to interview the other side's witnesses. personally, i do not think there should be like a civil trial where there is a hole discovery process, but whatever the rules are, they ought to apply to both sides. commissioner renne: so are you saying you would like to see the commission gives some rules to say that if the city attorney is using subpoena power to investigate, we allow you to take testimony or do whatever you want for the purpose of discovery? >> absolutely. i think what is good for the goose is good for the gander. commissioner renne: bucket. let me go back, because i am
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concerned about their request for the timing. he is the most prejudiced. i would like to know from you, if you had your druthers, putting aside your objections as to whether we should be doing this at all, if you had your druthers and know you have to put up with it, tell me how you would like to see it done to be the most speedy and the fairest to both sides. >> i would like to obtain at the earliest time from the mayor the list of witnesses and what their proposed testimony would be. commissioner renne: what he intends to approve. ok. >> whether or not it needs to be a unanimous vote, as we contend, and what types of evidence will be admissible.
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and i think that is really all we need to know to go forward. we know what they are going to put forward before you, and we know what the rules are going to be, and then we will get ready, and we will be prepared at the earliest possible. commissioner renne: what difference does it make for the purposes of your speed to tell you whether or not we have to act unanimously? >> it is probably just for our peace of mind, actually. in terms of speed, yes, that will not change the way we hear the case. if the commission feels they need more time to think on those issues, that is ok. commissioner renne: how long after the city attorney has provided you with this list of witnesses and the summary of its case, how much time would you need to prepare and get ready to go to trial and to provide the city attorney with your summary
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of what you intend? >> i would say 30 to 40 days after that. my best estimate. commissioner renne: ok. chair hur: with the witness list and testimony, are you anticipating something like what would be submitted prior to a civil superior court trial? is that the level of detail? >> i do not think it has to be that details. the witnesses, if they want to give us more detail, great. we would like to see them. it is just a summary of what their anticipated testimony would be, that would be ok. we just need to know what are the critical facts these witnesses will provide for you all so that we can determine how
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to meet that evidence. chair hur: other questions from the commissioners? thank you. mr. keith, i think we probably have some follow-up for you, as well. following mr. renne's line, do you have any objection of providing the information that was outlined? >> no. chair hur: how soon could you do that? >> we could write a one or two- line summary. there are some witnesses that we are still finalizing, those individuals will be, but once we get them, we would be happy to provide those.
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we have not been asked. commissioner renne: 1 or 2 descendants is, what does that mean? it has to be detailed enough so they understand the thrust of the testimony. >> oh, it will be. >> -- chair hur: how soon? >> as for the back witnesses, we could supply that with in one week. chair hur: and as for the police procedure witnesses? >> i would say about two weeks. one point that i would like to -- chair hur: as far as the legal issues, when could you have those briefed?
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same time >> let me think for a moment. yes, we could brief the legal issues, i would say, and the ones that we referenced before we could read immediately, meeting the standard of proof and the procedures for the hearing. the other issues, we are capable of briefing them, all of the issues on the bullet list, but i question about them coming before the commission, and there are how the facts interact with the law. there is an allegation that before the sheriff was an office, he told his wife he was very powerful. it is our contention that he was referring to the power a share. that occurred before he was in office, and if that has been
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alleged, the argument goes that it is not quite so simple to say that anything you do before january 8 cannot be construed as before office, so i think that these issues are better dealt with based on the factual record and the abstract, but we can deal with them essentially based on the allegations and the charges if the commission wishes to, but the point that i want to make is that the commission has a responsibility under the charter to collect a full record, and making preliminary legal rulings about what things make the with the scope of official misconduct is going to prevent the commission from hearing facts that should be part ofboard of supervisors, sok it would be an interesting and educational exercise to brief these in advance, but i would caution against saying certain things are off limits.
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>> i appreciate your position, but you could brief those issues identified by the commission, what ever issues were raised in your brief, and the two within a week? >> the other issues being? >> he identified two issues. he identified the issue of what the procedure should be for conducting investigations in this manner. you were here, right? >> i understand the issue to be the standard of proof and what type of evidence would be brought forward in these proceedings. good he is raising the issue about whether the city attorney can conduct an investigation of
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city employee of six. >> -- employee ethics. >> his question is whether it would govern what should occur. >> not just live hearing procedures but in advance of the hearing. >> the other issue he mentioned is whether the commission needs to unanimously recommend, whether it has to be unanimous. >> we consider that to be part of the procedure. >> the you have a position on that? >> our position is it is to make a recommendation. there is no limitation on whether it could be a majority, so we do not think it needs to be unanimous.
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>> other questions? >> he raised issue of possibly bringing in evidence of historical facts, and the way i heard it was similarly situated in law enforcement officers who pled guilty for misdemeanors or who had misdemeanors. you have a position on that? >> i think if it is going to come through and they say that officers can still commit a misdemeanor and still be effective police officers, we would not object to it.
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i think it is fine. i do not know if he may be referring to individuals, his presence of charges was improperly motivated, and we thing this region we think this evidence is inadmissible for that purpose. >> thank you. >> other questions? >> there is one manner regarding timing. as mentioned in our memo, if cooperation is not forthcoming with the sheriff, the mayor is going to amend the charges, to charge him with breach of of present duty to cooperate. good >> you are saying you have charged him and suspended him and charged him with misconduct
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that is a violation and if you will not talk to you that is a violation of his duties? >> absolutely. if a share of -- is the sheriff had committed misconduct and mirkarimi wanted to talk to him and provide truthful information and that deputies refuse, that deputy would be fired. every employee has a duty to cooperate with an investigation and to account for their conduct. >> other than mr. mirkarimi's testimony, is there other discovery, other reasons that
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could affect the timing we have discussed that would elongate the procedure in your mind? >> if share of mirkarimi were to provide us with the documents and we requested -- >> aside from cooperation, what else do you feel you need in order to have this herd and a timely basis from a >> we need to get a videotape from bohol of justice. -- from the hall of justice. >> the sheriff has no involvement in that. >> we serve them with a motion. >> everybody will have a chance to give public comment, but for now, we would really like to hear from the attorneys. good >> the other item that is
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pending is a motion for an order to compel him to testify. that is set for hearing on may 1. we have outstanding subpoena of its four telephone records set for may 4 year ago -- set for may 4. hopefully the testimony will be soon after. >> any other questions? >> what are the documents you are seeking to get from the sheriff's? >> the documents he obtained from the police department and the district attorney, which would include the same telephone records we are trying to obtain from may are also keen appear good it would include a
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videotape of the statements and whatever other materials regarding conversations with witnesses that were disclosed. >> anything else? thank you, sir. i have a couple more follow-up questions for you based on what he just said. with requests to interview the sheriff, and you have already said you are objecting to that. >> let me clarify, and we are going to make sure you have the applicable law on this later this evening or sometime tomorrow, and we did e-mail or letter about this.
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>> he was traveling all day, so that is probably why we did not get it. >> if we are going to submit it by e-mail maybe there will be a way to make sure it gets to everyone, but that is a topic for another day. we want clarification about whether or not they can do what they are trying to do. our reading says the ethics commission starts the investigation when they get a complaint. share of mirkarimi -- share of mirkarimi -- sheriff mirkarimi wants to cooperate. good we have requested a written opinion from you as to whether or not he has a duty to cooperate with the commission. if you tell him he does common
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he will cooperate. i am not sure i answered your question, but the fact of they have come forward and threatened that if you do not cooperate, we are going to amend and official misconduct and add failure to cooperate to those charges, to me that is beyond the pale. good and we have a legitimate question and needs to be straightened out, and we are not going to be bullied into doing things their way because they say thatbe done.
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>> any other questions? say that is the way it needs to perhaps he responded on the documents, and there appear to be documents as a result of the proceedings. i have misspoken. thank you for raising five. i think they want documents prepared in the course of criminal proceedings. we have the letter. we can provide it to you so you can see exactly what they are asking, and all we want is clarification on this issue. if you


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